Router Freedom challenged by new European rules
From 21 June a new set of rules will guide the implementation of Router Freedom in Europe. The internalisation of the rules by the 27 EU member states will face challenges with negative consequences for Router Freedom. The FSFE contributed to several improvements of the guidelines and will monitor compliance with them.
The COVID-19 pandemic shows how dependent people are on the Internet for their work and personal life. In times of lockdown, when people need to stay home and work remotely, the whole internet traffic, encryption, business and work interaction are transferred through personal routers. Since 2013, the FSFE has been advocating for Router Freedom in Europe with outstanding results in Germany and effects beyond its borders. Now, a new set of rules, for which the FSFE contributed to improve, will guide the implementation of Router Freedom in Europe. We summarise the positive outcomes as well as the challenges ahead.
Router Freedom's legal framework
In Europe, Router Freedom is regulated by three sets of rules. The first one comes from the Net Neutrality Regulation (Regulation (EU) 2015/2120), which establishes that people are free to choose their own digital equipment. The second set are the new Guidelines on the Location of the Network Termination Point (NTP), drafted by the Body of European Regulators for Electronic Communications (BEREC). National legislation and administrative acts in each EU member state will compose the third set. These are to be implemented locally by states' National Regulatory Agencies (NRAs) in accordance with the aforementioned Net Neutrality Regulation and Guidelines on the NTP.
The Guidelines on the NTP have the objective of providing guidance to the NRAs to determine in their jurisdiction if the router/modem should belong to users or to the Internet Service Providers (ISPs). In March, BEREC published the final version of the text, after a public consultation which the FSFE took part in November 2019. The Guidelines will come into effect on 21 June 2020, and the NRAs are supposed to take utmost account of these Guidelines when defining the location of the NTP.
"The FSFE welcomes BEREC's effort to provide a set of principles to determine the Network Termination Point. However, due to the unclear terms in the new Guidelines, the lack of enforcement commitment by the NRAs and abusive behavior of ISPs, the implementation of Router Freedom by 27 EU member states will be challenging. Our task at FSFE will be the compliance monitoring and the reporting of illegal practices", says Max Mehl, FSFE Programme Manager.
The final version of the Guidelines on the NTP brought changes of a clarifying and explanatory nature. Fundamentally, BEREC kept the original proposal of the draft to give the NRAs the possibility to choose from three different locations for the Network Termination Point:
- The NTP is at point A. This means that the router and modem are under the control of the user, who can decide which device to use - either the one recommended and provided by the ISP or one from a third party. That would result in Router Freedom.
- The NTP is at B. This means that the modem (so the device connecting to the ISP) will be part of the ISP's network, but additional routers or media boxes will be in the user's domain. We advise against this configuration because it will have a negative impact on users' local networks, obstructing Router Freedom.
- The NTP is at C. That's the most restrictive option as it results in the modem and router or a combined device being solely under the control of the ISP. This arrangement completely denies Router Freedom, since the users have no right to use their own equipment.
Although the FSFE argued that only point A could be Router Freedom compliant, BEREC kept the possibility of having the NTP in three different configurations. Nevertheless, we exerted a positive influence, stressing the necessity of keeping Router Freedom as the major principle when defining the NTP. Here are the key changes and reactions to the FSFE's input:
- BEREC slightly modified the official text in order to adopt our position to the extent that point A should be the rule when determining the NTP. They clarified the fact that an objective technological necessity must exist if an NRA wants to determine the NTP at B or C, and therefore denying Router Freedom.
- BEREC explicitly recognised our argument that it was not possible to find a real case where any incident with Router Freedom could justify the violation of the Net Neutrality Regulation. The experience in Germany with NTP at point A since 2016 serves as a positive example that devices chosen by end-users do not cause technological damage for ISPs.
- BEREC explicitly agreed to our argument that locating the NTP at point A contributes the most to innovation and competition in the router/modem market.
- BEREC acknowledged our comments that liberalisation of the router/modem market did not cause harm to the public network. BEREC therefore asks ISPs and manufacturers to work together instead of trying to create a false sense of security by isolating the public network.
- BEREC acknowledged our argument that points B or C would seriously hamper end-users' digital sovereignty, data protection and ecological footprint, and largely increase end-users' switching costs.
Challenges ahead for Router Freedom
Notwithstanding the efforts BEREC made to carefully weigh the different possible locations for the NTP and accepting the stakeholders' suggestions, there are still threats that could have a negative impact on Router Freedom in Europe. They are related to the vague terms used by the Guidelines that will cause discrepancies during the national implementations, the lack of commitment by NRAs to protect Router Freedom, and the abusive behavior of ISPs.
The NRAs' discretionary power to define "technological necessity"
The Guidelines on the NTP grant the NRAs the discretionary power to decide whether there is an "objective technological necessity" for routers to be part of the ISP's network. Allowing NRAs to decide the location of NTP based on "technological necessity" opens a dangerous precedent for discretionary and abusive interpretation of the Guidelines. While such necessity to establish the NTP on point C would be hard to prove, political and economic influence could easily override the high thresholds for these necessities in order to have at least the modem at ISPs' premises (point B) – and thereby cause serious harm to the Router Freedom of users. Besides, the decision by the NRAs to determine "technological necessity" would be hard to counteract, perhaps only through judicial channels.
The NRAs' lack of commitment to protect Router Freedom
A recent study has demonstrated that NRAs have been extremely conservative in applying penalties against Net Neutrality violations. Even worse, some countries, like Ireland and Portugal, have completely failed to establish sanctions against non-compliant ISPs. Other NRAs have set their fines at a very low amount, which certainly will not hinder ISPs from violating Router Freedom again. Big ISPs in Europe have annual revenues in nine figures and above. For them, a four to seven figure penalty is neither dissuasive nor effective as a deterrent for economically lucrative infringing activity. Therefore, Router Freedom could be easily violated by ISPs without any effective counteraction by NRAs.
The soft and hard barriers imposed by ISPs
As we have experienced in Germany, ISPs are very creative in forcing their routers on customers, creating barriers that can completely block Router Freedom. We call these soft barriers when ISPs do not prevent customers by contractual means from using their private routers, nor deny vital information for the router configuration (login data), but otherwise try to persuade customers not to use their own routers with unscrupulous arguments. In many cases, this is sufficient to scare people away from Router Freedom. Sometimes, ISPs push the limits and create hard barriers for customers. For example, ISPs impose contractual limitations, do not provide necessary login data, or completely refuse to provide technical support.
Help us monitor the future of Router Freedom in Europe
The FSFE will continue monitoring the new developments of Router Freedom in Europe closely. The new Guidelines on NTP will have to be enforced by NRAs of 27 different countries, which will certainly lead to a lot of discrepancies. The next six months will be essential to understanding if the NRAs' approach will benefit or harm Router Freedom. Our long-term expertise advocating for users' right to choose their own equipment, and the groundbreaking success we have achieved in Germany, put us in the best position to continue being a leading advocate for Router Freedom.
But this kind of long-term engagement is only enabled by your help. You can make a difference by joining us as a sustaining supporter and thereby make a stand for Router Freedom! As you can see, there is a lot to be done.